IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

DAVID S. SWAN, JR., et al.,

                        Appellant,

vs.                                                                                                        Appeal No. 99-8455-CI-88A

GLENN RASMUSSEN & FOGARTY, P.A.,

                        Appellee.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment

County Court, Small Claims Division, Pinellas County

The Honorable William B. Blackwood

David S. Swan
2364 Sunset Point Road
Clearwater, FL  33765
Appellant, pro se

Guy P. McConnell, Esquire
Post Office Box 3333
Tampa, FL 33601
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by David Swan (Appellant), from an Order Granting Summary Judgment For Defendant, Glenn Rasmussen & Fogarty, P.A., (Appellee), entered October 28, 1999, by the Pinellas County Court, Small Claims Division.  Upon review of the record and the briefs and being otherwise fully advised in the premises, the Order entered by the lower court is reversed and remanded as set forth below.

            It is the role of the appellate court, in reviewing a summary judgment, to view the facts in the light most favorable to the party against whom judgment is granted.   See O.E. Smith’s Sons, Inc., v. George, 545 So.2d 298, 299-300 (Fla. 1st DCA 1989).  In viewing the facts most favorable to the Appellant, this Court finds that the lower court erred in entering the Order Granting Summary Judgment for the Appellee. 

            The Order was entered pursuant to Small Claims Rule 7.135, which states that “at pretrial hearing or at trial, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.”  See Fla. Sm. Cl. R. 7.135(2000).  At the pretrial conference, the lower court concluded that the relief sought by the Appellant/Plaintiff had been previously denied by Judge Case in a separate proceeding and that there was not otherwise a triable issue.

            The record shows that the Appellant filed suit in the Small Claims Division for “professional time and professional expenses incurred in reference to Defendants demands in further reference to Florida Case # 96-2246-CI-21.”  This referenced case involved litigation between Porpoise Pool & Patio, Inc. (Plaintiff) and C. Frank Wreath, et al. (Defendant).  The Appellant was not a party to this action, but was subpoenaed as a fact witness by the Appellee, who represented Porpoise Pool & Patio.  After the Appellant failed to appear for his deposition, the Appellee filed a motion to obtain sanctions against the Appellant.  Initially, the trial court entered an Order to Show Cause requiring the Appellee to appear for deposition and to pay the Plaintiff $800.00.  This amount was later reduced by Order to $327.50, and reduced a second time to $0.00 in the Order Granting Motion for Relief from Order Regarding Order to Show Cause, entered by Judge Case on March 3, 1999.

            The Order entered on March 3, 1999, clearly and unambiguously ordered that “all parties and non-parties will be responsible for their own fees and costs associated with this dispute.”  However, this Order does not preclude the Appellant from bringing the underlying cause of action in Small Claims Court, even though the Appellant appears to be raising the same issue that was addressed in the Order entered by Judge Case on March 3, 1999.  Since neither the Appellant nor the Appellee were parties in the proceedings in which Judge Case entered the Order, the Appellant is not collaterally estopped from asserting the same claims against the Appellee in Small Claims Court.  (emphasis added); See E.C. v. Katz, 731 So.2d 1268 (Fla. 1999)(holding that the identities of the parties must be identical before collateral estoppel can be used defensively). 

            In E.C. v. Katz, the Florida Supreme Court specifically held that: “(1) the requirement of mutuality of parties is a general rule that applies to its defensive use; and (2) the sole exception to this rule carved out in attorney malpractice suits following resolution of ineffective assistance of counsel claims is to be read as narrowly as possible.”  See id. at 1270.  Therefore, in the present case, it is clear that collateral estoppel does not bar relitigation of costs and fees since the Appellant nor the Appellee were parties in the case of Purpoise Pool & Patio, Inc. vs. C. Frank Wreath, et al., Case No. 96-2246-CI-21.  See id.

             Therefore, it is,

            ORDERED AND ADJUDGED that the Order Granting Summary Judgment for Defendant, is hereby reversed.  On remand, the lower court shall enter an Order Setting Aside the Order Granting Judgment for Defendant and proceeding accordingly. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of October 2000.

                                                                       

         

                                                           

                                                                        ___________________________________

                                                                        CHARLES W. COPE

                                                                        Circuit Judge, Appellate Division

Copies Furnished To:

The Honorable William B. Blackwood

David S. Swan
2364 Sunset Point Road
Clearwater, FL  33765
Appellant, pro se

Guy P. McConnell, Esquire
Post Office Box 3333
Tampa, FL  33601-3333
Attorney for Appellee

Staff Attorney, Appellate Division